Important New AI Disclosure Law

California Gov. Gavin Newsom just signed a law requiring disclosure of the use of a synthetic performer in advertising.

As you may know, New York already has a similar law. Both laws are intended to require advertisers to disclose when their ads include computer-generated performers instead of real ones, but there are some significant differences.

Here’s what’s different:

• Most importantly, private litigation. The New York law does not provide a private right of action for a violation. California makes a violation actionable under its false advertising law and enforceable under the state's Unfair Competition Law, potentially opening the door to private litigation, including class actions.

• Also key, the California law provides disclosure language; the New York law does not. California requires wording “substantially similar” to “this performance features a synthetic performer” or “no human performer is depicted.” The disclosure must be substantially similar and must be clear and conspicuous.

• Critically, audio-only advertising is treated differently. New York expressly excludes audio-only advertisements, while California requires disclosure in audio-only advertisements.

• California is clearer about how significant the performer’s role must be. New York does not make entirely clear whether an incidental use of a synthetic performer would trigger the disclosure requirement. California requires disclosure only when the synthetic performer is “prominently” included, such as appearing in the foreground and demonstrating or illustrating the product or service, providing or voicing the commercial message or narration, or illustrating or reacting to the commercial message.

• California does not include New York’s express actual-knowledge requirement. New York’s disclosure obligation applies only where the person producing or creating the ad has actual knowledge that it contains a synthetic performer.

• The laws also treat advertising media differently. New York expressly excludes the media that publish or disseminate the ad from the law’s requirements. In California, an advertising medium that receives a qualifying court order concerning a noncompliant ad has obligations to stop disseminating the ad.

What’s similar?

• Both laws exempt certain advertising for expressive works. For example, if a movie, television program or other expressive work itself includes a synthetic performer, the disclosure requirement generally does not apply simply because a clip or trailer showing that synthetic performer is used to advertise or promote the work.

• Both laws exempt translations.

The New York law is already in effect. California’s law takes effect January 1, 2027.